Braegger v. Oregon Short Line Railroad Co.

• Citation: 24 Utah 391,68 P. 140
• Decision Date: 11 March 1902
• Docket Number: 1341
• Court: Utah Supreme Court
• Parties: GEORGE BRAEGGER, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

68 P. 140

24 Utah 391

GEORGE BRAEGGER, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant

No. 1341

Supreme Court of Utah

March 11, 1902

Appeal from the First District Court, Box Elder County.--Hon. C. H Hart, Judge.

Action to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

P. L Williams, Esq., Geo. H. Smith, Esq., and J. W. N Whitecotton, Esq., for appellant.

The question whether the relation of fellow-servants exists in a given case, is one of fact for the jury. Hass v. Phila., etc., S. S. Co., 88 Pa. St. 269; Holton v. Daly, 4 Ill.App. 25; Chamberlain v. R. R. Co., 11 Wis. 238; Ryan v. Cumberland Valley R. R. Co., 23 Pa. St. 384; Indianapolis & St. Louis R. R. Co., etc., v. Morganstern, 106 Ills. 216; Chicago, etc., R. R. Co. v. Moranda, 93 Ills. 302.

James S. Perry, Esq., Ricy H. Jones, Esq., and Lindsay R. Rogers, Esq., for respondent.

We make the point that the statute itself (sec. 1343, R. S.) clearly says that these two employees were not fellow-servants, because (1) they were engaged in other and different departments of service; (2) they were not working together at the same time and place and to a common purpose.

Independent of the statute (sec. 1343, R. S., which was enacted in this State in 1896) the uniform decisions of this court are strongly against and conclusive of appellant's contention. Pool v. S. P. Co., 20 Utah 210; Daniels v. Railway Co., 6 Id. 357; Webb v. Railway Co., 7 Id. 363.

Our fellow-servant statute is similar to the statute of the State of Texas. Gulf, etc., R'y Co. v. Warner (Tex.), 35 S.W. 364; Houston & T. C. R. Co. v. Talley, 39 S.W. 206; Chicago & N.W. R. Co. v. Moranda, 93 Ills. 302, S. C., 34 Am. Rep. 168. (Fireman and section hand, held--not fellow-servants); C. R. I. & P. R. Co. v. Henry, 7 Bradw. 322. (Loader of freight car and switch tender, held--not fellow-servants); C. & N.W. R. Co. v. Swett, 45 Ills. 197. (Fireman and track repairer, held--not fellow-servants); St. Louis & San Francisco Ry. Co. v. Weaver, 35 Kansas 412, s. c., 57 Am. Rep. 176. (Section foreman and engineer, held--not fellow-servants); Louisville, etc., R. Co. v. Collins, 2 Duv. (Ky.) 114, s. c., 87 Am. Dec. 486. (Laborer unloading cars, and engineer, held--not fellow-servants); Gillenwater v. Madison, etc., R. Co., 5 Ind. 339 (carpenter working on railroad bridge, and engineer, held--not fellow-servants); Hobson v. New Mexico & A. R. Co. (Ariz.), 28 Am. and Eng. R. R. Cas. 360 (teamster hauling ties for construction of railroad, and engineer of train, held--not fellow-servants); Toledo, etc., R. Co. v. O'Connor, 77 Ill. 391; Chicago and A. R. Co. v. Kelly, 21 N.E. 203 (track laborer and engineer, held--not fellow-servants).

The assignment of error, "That the verdict appears to be excessive, and given under the influence of passion or prejudice," will not under the Constitution of this State be reviewed by this court because the amount of the damages is a fact found by the jury. Nelson v. S. P. Co., 15 Utah 325; Mangum v. Mining Co., 15 Id. 537; Walley v. Bank, 14 Id. 313; Kennedy v. Oregon Short Line R. Co., 18 Id. 325.

BARTCH, J. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

--This action was brought to recover damages for personal injuries alleged to have been occasioned through the negligence of the defendant. It appears from the evidence that the plaintiff was employed as section hand in the track department; that at the time of the injury he was, by direction of the section foreman, in a box car, unloading culverts and ties from the car, which was standing on a sidetrack; and that the injury was caused by the engineer of a freight train running some cars in on the side track against the box car. The engineer was employed in the mechanical department. It appears the box car was moved several times while being unloaded, and the section foreman testified that he gave the order to the brakeman, who was right there, and signaled the engineer to move the cars back at the time of the accident, and that just before giving such order he told the plaintiff and other workmen to cease throwing out ties, and warned them to look out; that the train was coming. The plaintiff testified, in substance, that he saw no brakeman there, nor heard any such order or warning given by the foreman at that time, but that such order and warning were given the first time the car was moved; and that, after the car was moved the first time, the foreman did not come near the car, nor say anything about moving it, nor that the train was coming in, nor that no more ties should be thrown out. Upon the case being submitted to the jury, a verdict in the sum of $ 2,500 was returned in favor of the plaintiff. Judgment having been entered thereon, the defendant appealed.

It is urged by the appellant that the court erred in refusing to charge the jury as requested by defendant's request No 4. The request reads: "I charge you that if you find, from the evidence in this case, that at the time of the injury complained of, if you find that the plaintiff was injured, the engineer was moving the box cars containing ties which the plaintiff was unloading, and was moving them under the direction of the section foreman, whether that direction was communicated to him by the foreman directly or through others, and that the moving of said cars was a part of the work of unloading the said ties, then and in that case the engineer and the plaintiff would be fellow-servants, and the plaintiff can not recover, and your verdict should be for the defendant." On the question of fellow-servants the court instructed the jury as follows: "You are instructed that the plaintiff can not recover in this action for any injury caused by the negligence of a fellow-servant of the plaintiff. Our statute defines who are vice-principals, not fellow-servants, as follows (Rev. St., sec. 1342): All persons engaged in the service of any person, firm, or corporation, foreign or domestic, doing business in this State, who are entrusted by such person, firm, or corporation as employer with the authority of superintendence, control, or command of other persons in the employ or service of such employer, or with the authority to direct any other employee in the performance of any duties of such employee, are vice-principals of such employer and are not fellow-servants.' Our statute defines who are fellow-servants as follows: All persons who are engaged in the service of such employer, and who, while so engaged, are in the same grade of service and are working together at the same time and place and to a common purpose, neither of such persons being entrusted by such employer...